Summary Judgment Win On “Serious Injury” Threshold In Car Accident Case

Fleischner Potash attorneys continued their winning ways on March 6 with a win on a summary judgment motion in Richmond County Supreme Court. Partner Dan Stewart and Associate Brian Divney argued that the male plaintiff, in his early 30s, did not satisfy the “serious injury” threshold because of a significant history of pre-accident injuries and treatment. To support their position, FP submitted the affirmed reports of two medical experts, both of whom opined that the December 2015 accident at issue in the case did not have an impact on plaintiff’s lower back or knee, based on medical records and radiology reports from before the accident.

Plaintiff eventually had a two-level fusion surgery for his lumbar spine in November 2019. However, plaintiff misled his surgeon, and told him he had no spinal injuries or treatment prior to the December 2015 accident. As such, the surgeon’s affirmation submitted in opposition to the summary judgment motion made no reference to plaintiff’s pre-accident condition, nor did the surgeon address the reports of FP’s medical experts. The trial court agreed with FP’s arguments regarding the shortcomings of plaintiff’s opposition, and dismissed plaintiff’s case. In addition, the court awarded costs and reasonable disbursements to FP.

For more information about this decision, or to learn how FP’s team can help yours, please contact Dan Stewart at 646-520-4255 or